CHAPTER 9 - DELICTS RELATING TO SEXUAL INTERCOURSE AND TO MARRIAGE

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Seduction

General law

This delict is committed where a man induces a woman who is a virgin and who is not his wife to have sexual intercourse with him.

 

The woman may recover damages:

  • as compensation for the loss of her virginity and consequent impairment of her marriage prospects; and
  • if a child is born as a result of such seduction, lying-in expenses, maintenance for herself before, at the time of, and after, the confinement, and maintenance for the child. If maintenance is being claimed, paternity will have to be established.

 

If D denies seduction P’s evidence has to be corroborated. If D admits to sexual intercourse, but denies paternity, the onus is on D to prove that he cannot be the father.

 

It has been argued that the claim for loss of virginity is an anachronistic action and that all that should be retained in the modern context is the claim for maintenance.

 

For further commentary on this delict, see Ncube Family Law in Zimbabwe pp 27-34.

 

See Bull v Taylor 1965 (4) SA 29 (A); Gomwe v Chimbwa 1983 (2) ZLR 121; Katekwe v Muchabaiwa 1984 (2) ZLR 112 (H); Mudehwe v Mukondomi 1991 (2) ZLR 222 (S). The effect of the Legal Age of Majority Act; Wolfenden v Jackson S-122-85.

 

Customary law

At customary law the delict of seduction is committed when a man induces a woman (whether or not she is a virgin) who is not his wife to have sexual intercourse with him. The action for damages is at the instance of the father or guardian of the woman who is entitled to claim damages for impairment of the bridewealth (roora) value of the woman. It was laid down in the case of Katekwev Muchabaiwa (1984) that, where the woman in question is 18 or over, under the Legal Age of Majority Act she becomes a major and thus only she can sue for seduction and her action is under common law in this instance. In other words, the guardian’s right to sue for seduction under customary law falls away when the girl attains the age of 18.

 

See Gomwe v Chimbwa 1983 (2) ZLR 121 (S); Ketero v Mukarati S-20-84; Katekwe v Muchabaiwa 1984 (2) ZLR 112 (H); Lopez v Nxumalo S-115-85; Mwashita v Simango S-116-87; Chidembo v Machingambi S-50-87.

 

Breach of promise to marry

See Guggenheim v Rosenbaum 1961 (4) SA 21 (W).

Adultery

In South Africa the Constitutional Court abolished the action for damages for adultery against person committing adultery with a person’s spouse DE v RH (CCT 182/14) [2015] ZACC 18; 2015 (5) SA 83 (CC). However, in Njodzi v Matione HH-37-16 the High Court in Zimbabwe, the court decided that the claim for adultery damages is not unconstitutional. However, this case has been taken on appeal to the Constitutional Court and judgment is awaited on this matter. In the Njodzi case P claimed delictual damages from D for the latter’s adultery with Ps husband. The adultery resulted in a child. P claimed damages for contumelia and loss of consortium. At the trial D made an application challenging the constitutionality of P’s claim. It was argued that it was improper to sue D to the exclusion of P’s spouse, although he was the main architect of the relationship. This was discriminatory and therefore contrary to the constitutional provisions of equality before the law. It was further argued that the claim amounted to infringement into privacy of D’s sexual life, thus violating not only the right to privacy, but also the right to freedom of association. She argued that the claim by O was archaic and unconstitutional. P argued that the institution of marriage was recognised by the Constitution and adultery was a threat to the existence of a marriage.

 

The court held that adultery is an injury occasioned to the innocent spouse because of the adulterous relationship. The spouse can recover damages for loss of a spouse’s consortium as well as any patrimonial loss suffered and also personal injury or contumelia suffered by the innocent spouse, inclusive of loss of comfort, society and services. Contumelia is the injury, hurt, insult and indignity that occurs to an innocent spouse where the other commits adultery. Once there is evidence of such injury, hurt, insult and indignity having been occasioned by the adulterous relationship, then the innocent spouse is entitled to damages for contumelia. Once contumelia is established, then the next issue would be whether or not there is loss of consortium, that is, loss of comfort and society. Adultery damages, whether classified as falling under contumelia or consortium, are delictual damages arising from a delictual wrong occasioned to an innocent married party. To this extent, the distinction is fallacious.

Marriage is a contract sui generis entered into by two willing parties. The sanctity of this contract is what an adultery damages claim seeks to protect. The claim should not be viewed in isolation but from the view point of its purpose, being to protect the sanctity of marriage. In suing the third party, the claimant will be seeking a personal remedy for hurt, injury, iniquity of company and comfort occasioned by the third party’s association with the claimant’s spouse.

While the courts in South Africa, following rulings in other jurisdictions, have held that an award of damages for loss of consortium is no longer justified, the issue was whether such reasoning was applicable in Zimbabwe in the light of the Constitution’s normative framework and our social context. In our case law, adultery damages are underpinned on the preservation of the sanctity of marriage. Adultery may, in terms of the Matrimonial Causes Act [Chapter 5:13], be evidence of the irretrievable breakdown of a marriage. Similarly, it may, in terms of s 10 of the Maintenance Act [Chapter 5:09], affect whether maintenance should be granted or continued.

Adultery claims are very much consistent with the present day social and legal reality in Zimbabwe. Public policy is now infused with constitutional values and norms. It is apparent that public policy often represents the legal convictions of the community. It reflects those values that are held dearly by a society. To that extent, therefore, in deciding whether a delictual claim of adultery damages is constitutional or otherwise, while appreciating and respecting foreign jurisdictions’ decisions, the decision should be contextualised to reflect the legal convictions and societal values of this country. Section 3 of the Constitution outlines the values and principles on which the Constitution is founded, and shows that the Constitution recognizes and accepts that the Zimbabwean moral fabric is engraved in the country’s culture, religion and traditional values. Any development of the common law therefore ought to be underpinned on the interests of justice, and of course, in conformity with the Constitution. The institution of marriage is entrenched deeply in the country’s culture, tradition and religion, and its protection has been in unambiguous language propagated by the courts. Adultery is still regarded as a threat to marriage. Marriage is recognised and protected by s 78 of the Constitution.

The purpose of adultery damages is protection of the marriage institution and to compensate the innocent party for the loss of consortium and contumelia. This does not preclude the innocent party from either suing for divorce or condoning the wrong and continuing with the marriage. Marriage and family are social institutions of vital importance. They have more than personal significance: the Constitution would not seek to protect the institution of marriage if the sustenance of the institution was wholly for the parties, at least in the Zimbabwean context, given the importance placed by society on the institution.

The argument that the delict brings about indignity on the third party and that it infringes on the rights of the third party cannot be sustained when from the perspective of its invasion of the marriage institution. The invasion of a marriage by a third party in the Zimbabwean context is an attack on the dignity of the innocent party. The dignity of the adulterer ought not to be more important than that of an innocent party to a marriage. Rights have to be exercised reasonably and with due regard for the rights and freedoms of other persons. The defendant’s rights in this matter are the same as the plaintiff’s; the potential infringement of her dignity and privacy should not be viewed in disregard of the rights of the innocent spouse in a marriage. While other jurisdictions have in part or fully done away with the delict or tort of adultery, the protection of the family and marriage institutions is encapsulated in the Constitution. Society, which was involved in the constitution-making process, still views adultery negatively. A third party who, with knowledge, intrudes into the marriage institution, ought to compensate the innocent spouse for the injury occasioned. Adultery is almost always debilitating for the innocent spouse who suffers indignity and hurt because of the adultery.

 

Similarly in Tanyanyiwa v Huchu 2014 (2) ZLR 758 (H) the court decided that the action for adultery against the third party committing adultery with P’s spouse remains part of the law of Zimbabwe and there is no reason to follow the jurisdictions which have abandoned this remedy.

 

The delict of adultery is committed by D when he or she has sexual intercourse with a person whom he or she knows to be P’s spouse. P can claim damages for humiliation and loss of the companionship and society of the guilty spouse.

 

The defences to this action are:

  • that D was unaware that the adulterous spouse was married; or
  • P connived at the adultery; or
  • D was raped.

 

In Jhamba v Mugwisi 2010 (1) ZLR 124 (H) the court pointed out that damages for adultery are claimable on two entirely separate and distinct grounds: first, on the ground of the injury or contumelia inflicted upon P; and, second, on the ground of the loss of comfort, society and services of the other spouse (consortium). It is wrong for P to lump her claims in one, mixing both contumelia (injury) and loss of consortium. Loss of consortium is the main element in the estimation of damages for adultery.

 

The cases of Nyakudya v Washaya 2000 (1) ZLR 653 (H) and Nyandoro v Tizirai 2006 (1) ZLR 121 (H) set out the factors to be taken into account in assessing damages for adultery. These are:

  • the character of the woman or the man involved;
  • the social and economic status of P and D;
  • whether the D has shown contrition and has apologized;
  • the need for deterrent measures against the adulterer to protect the innocent spouse against contracting HIV from the errant spouse;
  • the level of awards in similar cases;
  • the decrease in the value of money;
  • whether P has suffered lack of consortium as well as contumelia.

 

In Jhamba v Mugwisi 2010 (1) ZLR 124 (HB)the court said that the quantum of damages should reflect all the circumstances surrounding the occurrence of the adultery, including P’s own conduct in the matter. Where D had been having an illicit relationship with the P’s husband for over 20 years, resulting in four offspring, P could not say she was not aware of his sexual escapades. She chose to ignore the situation and thereby condoned the adultery. She did not sue for divorce. Consequently, damages for loss of consortium could not be high.

 

In Nyandoro v Tizirai 2006 (1) ZLR 121 (H) the court held that where the marriage still subsisted in spite of the adultery, damages could only be awarded for contumelia and not for loss of consortium.

 

In Gwatidzo v Masukusa 2000 (2) ZLR 410 (H) the court held a woman married in a customary law marriage did not have the right to claim damages for adultery.

 

See also Landry v Landry 1970 RLR 134 (GD). Contumelia; Johnson v Joubert 1975 (2) RLR 176 (G) Contumelia; Nyaumba v Murapa 1975 (2) RLR 138 (A) measure of damages; Maria & Anor v Murimbika 1976 (1) RLR 385 (A) ignorance that the woman was married is defence; Cottham v Cottham & Anor GB-5-76; Hickey v Hickey & Anor GS-28-79 basis for awarding damages; Meakin v Meakin HH-384-83 wife against woman persistently committing adultery with her husband; Shongwe v Shongwe & Anor HH-414-86 knowledge that the woman is married is the essential element; Dzemwa v Makarati HH-85-87 adultery by man with wife who had been living apart from husband.

 

For further commentary on this delict see Ncube Family Law in Zimbabwe pp 154-155.

 

Abduction, enticement, harbouring of another’s spouse

This delict is committed if D, knowing that a person is married, detains that married person against his or her will or entices or persuades that person to leave or stay away from his or her spouse. P can claim damages for loss of the companionship and society of his or her spouse who has been so detained or so enticed away.

 

The defences to this action are:

  • that the spouse was justified in leaving P or D believed that the spouse was justified in leaving; or
  • D did not coax or persuade the spouse to leave.

 

The case of Van Nuil v King HH-90-83 deals with what P must prove for enticement and alienation of affections.

 

For further commentary on this delict see Ncube Family Law in Zimbabwe pp 153-154.

 

Bigamy

In Sibanda v Sibanda & Anor 2002 (1) ZLR 622 (H) the court held that an action for damages lies under the actio injuriarum against D who, when already married to a woman, purports to enter into a second marriage with P who was not aware that he had been married already. But the damages for injuria would not be high without evidence that she was a sensitive woman who suffered anguish and humiliation when she discovered the bigamy.